Verrilli gets final OK as SG

Posted Mon, June 6th, 2011 5:35 pm by Lyle Denniston

The Senate on Monday approved the nomination of Donald B. Verrilli, Jr., to be the next U.S. Solicitor General. The final vote was 72-16. A statement by Attorney General Eric Holder on the approval is here. Technically, Verrilli will succeed Elena Kagan, who left the post to become a Supreme Court Justice. Since her departure, the office has been headed by her former deputy, Neal K. Katyal, as Acting Solicitor General.

Earlier, Senate leaders had planned to hold a vote on a motion to stop debate on Verrilli’s nomination; it would have taken 60 votes to close discussion and allow a final vote. The so-called “cloture” motion was withdrawn, however, and a final vote then proceeded. It no doubt had become apparent that, if the cloture vote were taken, Democratic leaders would have had enough support to succeed. A sizable number of Republicans were set to vote for the nomination, making the ultimate outcome predictable.

In Katyal’s final weeks as the acting SG, he has been representing the Obama Administration in the appeals courts’ hearings on the constitutionality of the new federal health care law. He is scheduled to make another of those arguments on Wednesday in Atlanta, before the Eleventh Circuit Court. His main adversary in that argument will be former U.S. Solicitor General Paul D. Clement.

The defense of that law very likely will pass to Verrilli when, as expected, the constitutional question reaches the Supreme Court, perhaps at its next Term starting Oct. 3. Customarily, major cases involving the government’s most important interests are argued by the Solicitor General personally.

NOTE: On the final Senate vote, Verrilli received 26 Republican votes, along with those of 46 Democrats. All 16 votes cast against him were by Republicans. Twelve senators did not vote.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.